Shoulders v. State

• Decision Date: 23 September 1991
• Docket Number: No. 49A02-9012-PC-726,49A02-9012-PC-726
• Citation: 578 N.E.2d 693
• Parties: Robert E. SHOULDERS, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
• Court: Indiana Appellate Court

Page 693

578 N.E.2d 693

Robert E. SHOULDERS, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.

No. 49A02-9012-PC-726.

Court of Appeals of Indiana,

Fifth District.

Sept. 23, 1991.

Susan K. Carpenter, Public Defender, Linda G. Nicholson, Deputy Public Defender, Indianapolis, for appellant-defendant.

Linley E. Pearson, Atty. Gen., Louis E. Ransdell, Deputy Atty. Gen., Office of Atty. Gen., Indianapolis, for appellee-plaintiff.

SHARPNACK, Judge.

Robert E. Shoulders appeals the denial of his petition for post-conviction relief. We affirm.

Shoulders raises three issues on appeal:

1. Did the post-conviction court err in holding that the supreme court's decision in Shoulders's direct appeal is res judicata and bars reconsideration of the trial court's alleged error in prohibiting Shoulders from asking a state's witness, who, pursuant to a plea bargain, had agreed to testify against Shoulders, whether he knew the maximum possible penalty for a class A felony?

2. Was Shoulders deprived of effective assistance of trial or appellate counsel?

3. Did the prosecutor engage in misconduct which prejudiced Shoulders's right to due process of law?

Shoulders was convicted of robbery and theft. The facts of the crime are reported in the supreme court opinion affirming his conviction on direct appeal. Shoulders v. State (1985), Ind., 480 N.E.2d 211, 211-212.

While testifying at his trial, Shoulders admitted that he committed the theft, but denied that he committed the robbery. His conviction of robbery was based in part on the testimony of his accomplice, Floyd Mullins, who had earlier entered into a plea agreement with the state. The plea agreement provided that Mullins would testify against Shoulders and plead guilty to class B felony burglary and that the state, in return, would forgo prosecuting Mullins for class A felony robbery and class D felony theft. Mullins received a sentence of six years imprisonment on the burglary conviction.

At trial, Mullins divulged the terms of the plea agreement on direct examination. Under cross-examination, he stated that he had been informed of the maximum possible sentence for a class B felony. Shoulders's counsel asked him if he was aware of the maximum possible sentence for a class A felony. The state objected, and the trial court sustained the objection.

Shoulders took a direct appeal to the supreme court challenging the trial court's refusal to allow his counsel to ask the question on cross-examination. The unanimous supreme court, writing through Justice DeBruler, rejected Shoulders's argument, stating:

Here, the State disclosed the entire plea agreement which indicated that a robbery charge and a theft charge were dismissed in exchange for a plea of guilty to burglary and for his testimony against appellant.

This disclosure was sufficient to inform the jury that Mullins received a substantially diminished penalty for his guilty plea and testimony. As a result, the jury had sufficient facts about the circumstances of Mullins's testimony to evaluate his credibility. In these circumstances, knowledge of the even greater sentence for the class A offense, if imparted to the jury, would not have added tellingly to the impeaching value of the bargain, and would have raised the danger of a compromise verdict.

Shoulders, 480 N.E.2d at 212-213.

A little more than one year after it affirmed Shoulders's conviction, the supreme court decided Jarrett v. State (1986), Ind., 498 N.E.2d 967. In Jarrett, a divided supreme court held that it was reversible error for a trial court to prevent a defendant from inquiring as to the extent of a witness's knowledge of the potential punishment which the witness avoided by entering into a plea agreement and testifying against the defendant.

After the Jarrett decision was handed down, Shoulders filed his petition for post-conviction relief claiming, based on the three-part retroactivity test announced in Fossey v. State (1970), 254 Ind. 173, 258 N.E.2d 616 and reaffirmed in Rowley v. State (1985), Ind., 483 N.E.2d 1078, that he was entitled to retroactive application of the rule announced in Jarrett. The post-conviction court rejected his claim. The court evidently recognized the relationship between federal and our own case law on retroactivity and noted that the United States Supreme Court had revised the federal rule in Teague v. Lane (1989), 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334. The court apparently concluded, correctly as it developed, that our supreme court would modify Indiana's retroactivity rules to conform with those announced in Teague. The court determined that the Jarrett holding concerning the extent to which a defendant could cross-examine concerning plea agreements was not entitled to retroactive application and denied Shoulders's petition. Three weeks later, the supreme court adopted the Teague retroactivity test in Daniels v. State (1990), Ind., 561 N.E.2d 487.

Shoulders argues that the supreme court's decision in his direct appeal is not res judicata despite the fact that the supreme court considered the identical claim of error upon which he predicates this post-conviction action. He acknowledges that the doctrine of res judicata normally precludes post-conviction reconsideration of issues decided on direct appeal. IND.RULES OF PROCEDURE, POST-CONVICTION RULE 1(8); Schiro v. State (1989), Ind., 533 N.E.2d 1201, cert. denied, 493 U.S. 910, 110 S.Ct. 268, 107 L.Ed.2d 218. However, he argues that no case holds that res judicata bars relitigation of an issue which once had been decided against a defendant on appeal but which had been decided differently in a subsequent case involving a different defendant.

We cannot agree with Shoulders's argument, because our supreme court has applied res judicata under such circumstances. In Layton v. State (1974), 261 Ind. 567, 307 N.E.2d 477 (Layton III ), the supreme court affirmed the denial of Layton's post-conviction petition. Layton had been convicted of first degree murder and sentenced to life imprisonment. He appealed to the supreme court, which reversed his conviction and remanded for a new trial. See, Layton v. State (1966), 248 Ind. 52, 221 N.E.2d 881 (Layton I ). Before his new trial, Layton filed a motion requesting that the trial court prohibit the state from seeking the death penalty or referring to it in any way, from asking the members of the venire panel any questions concerning their attitudes toward the death penalty, and from introducing any evidence of prior offenses. The trial court denied the motion except with regard to the prior offenses. At trial, Layton objected to all jury instructions concerning the death penalty, but the trial court overruled his objection and instructed the jury on the death penalty. The jury convicted Layton and he again appealed to the supreme court.

In this second direct appeal, Layton argued that the trial court violated the constitutional prohibition against double jeopardy by allowing the state to seek the death penalty in his second trial since the death penalty amounted to a greater sentence than he received in the first trial. The supreme court rejected his argument, and affirmed his conviction. See, Layton v. State (1968), 251 Ind. 205, 240 N.E.2d 489 (Layton II ).

After our supreme court decided Layton II, the United States Supreme Court handed down its decision in Price v. Georgia (1970), 398 U.S. 323, 90 S.Ct. 1757, 26 L.Ed.2d 300, which held that the state violated the double jeopardy prohibitions of the federal constitution when, upon retrial following a successful appeal by a criminal defendant, it sought a greater sentence than that received by the defendant in his first trial. Our supreme court followed Price in Causey v. State (1971), 256 Ind. 19, 266 N.E.2d 795.

Layton then filed a petition for post-conviction relief in which he argued that he was entitled to a new trial under the rule announced in Price and Causey. In affirming the post-conviction court's denial of Layton's petition, our supreme court wrote:

Secondly, the same issue, although differently assigned, was reviewed and determined upon the defendant's direct appeal and is therefore res judicata. At his second trial, the defendant objected to the giving of instructions that recited the criminal statutes applicable to the case and the penalties therefore, including the death penalty, if a jury saw fit to impose it. It was his contention that this constituted double jeopardy. This issue was decided against the defendant and is final, notwithstanding that [Price and Causey ], cases upon which he here leans heavily for support, had not yet been decided.

Layton III, 261 Ind. at 570, 307 N.E.2d at 479 (emphasis added).

We hold that Layton III governs this case. Shoulders, just like the defendant in Layton III, seeks to relitigate an issue that has been decided against him by the highest court of this state. Shoulders, just like the defendant in Layton III, asserts that he should be allowed to benefit from later cases which arguably overruled the decision in his earlier direct appeal. The supreme court rejected the defendant's petition in Layton III because it found its opinion on his direct appeal to be res judicata, and we reject Shoulders's petition here. ¹

Shoulders next asserts that his trial counsel was ineffective because trial counsel introduced evidence of Shoulders's past offenses which were not admissible for impeachment for dishonesty under Ashton v. Anderson (1972), 258 Ind. 51, 279 N.E.2d 210; because trial counsel failed to object to questions concerning the offenses which were allegedly beyond the scope of direct examination; because trial counsel failed to tender a jury instruction concerning evidence of other offenses; because trial counsel failed to object to allegedly prejudicial statements made during the state's opening argument ²; and because trial counsel allegedly failed to make adequate final argument. In...